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Article 38 of the Constitution of Ireland empowers the Dáil to establish "special courts" with wide-ranging powers when "the ordinary courts are inadequate to secure the effective administration of justice".

Offences covered under the laws are known as "scheduled offences". These scheduled offences range from illegal possession of firearms, to importing seditious foreign newspapers, to threatening to damage property

The Special Criminal Court also has jurisdiction over non-scheduled offences where the Attorney-General certifies, under s.47(2) of the under the Offences against the State Act 1939, that in his or her opinion the ordinary courts are "inadequate to secure the effective administration of justice in relation to the trial of such person on such charge".[1] The Director of Public Prosecutions (DPP) exercises these powers of the Attorney-General by delegated authority.[1][2]

Although the court was initially set up to handle terrorism-related crime, it has been handling more and more organised crime cases after the Provisional IRA ceasefire in the 1990s. For instance, members of the drugs gang which murdered journalist Veronica Guerin were tried in the Special Criminal Court.

Section 35(4) and (5) of the Offences against the State Act 1939 provide that if at any time the Government or the Parliament is satisfied that the ordinary courts are again adequate to secure the effective administration of justice and the preservation of public peace and order, a rescinding proclamation or resolution, respectively, shall be made terminating the Special Criminal Court regime; to date, no such rescinding proclamation or resolution has been promulgated.[1] Following the introduction of a regular Government review and assessment procedure on 14 January 1997, reviews taking into account the views of the relevant State agencies were carried out on 11 February 1997, 24 March 1998, and 14 April 1999, have concluded that the continuance of the Court was necessary, not only in view of the continuing threat to State security posed by instances of violence, but also of the particular threat to the administration of justice, including jury intimidation, from the rise of organised and ruthless criminal gangs, principally involved in drug-related and violent crime.[1]

The court is composed of three judges appointed by the government from among the judges of the ordinary courts, usually one from the High Court, one from the Circuit Court and one from the District Court. The court sits as a three-judge panel with no jury, and verdicts are by majority vote. Verdicts can be appealed to the Court of Criminal Appeal.[2][6]

The Special Criminal Court has been criticised by the Irish Council for Civil Liberties,[8]Amnesty International[9] and the United Nations Commission on Human Rights,[10] for its procedures and for being a special court, which ordinarily should not be used against civilians. Among the criticisms are the lack of a jury, and the increasing use of the court to try organised "ordinary" crimes rather than the terrorist cases it was originally set up to handle. Critics also argue that the court is now obsolete since there is no longer a serious terrorist threat to the State (see: Northern Ireland peace process). Under the law, the court is authorised to accept the opinion of a Garda Síochána chief-superintendent as evidence that a suspect is a member of an illegal organisation. (However, the court has been reluctant to convict on the word of a garda alone, without any corroborating evidence.)

Most famous is the case of Nicky Kelly, who was convicted along with two other men by the Special Criminal Court in 1978 of carrying out the Sallins Train Robbery. All three convictions were later overturned after it was found that the suspects had been assaulted by gardaí while in custody.

In 2003, Michael McKevitt was convicted of "directing terrorism" and "membership of an illegal organisation" for his role as leader of the Real IRA. In 2001, Dundalk man Colm Murphy was convicted of "conspiracy to cause an explosion likely to endanger life or cause injury", in connection with the Omagh bombing . In January 2005, Murphy's conviction was quashed and a retrial ordered by the Court of Criminal Appeal, on the grounds that two gardaí had falsified interview notes, and that Murphy's previous convictions were improperly taken into account by the trial judges.[12]